Buenos Aires, December 2002.-
CARS AND SEEN:
File No. 14.029-A, entitled: "STARTEL SA, s/ appeal" and,
CONSIDERING:
I.-That at fs. 95/104 Dr. is introduced. Edward A. Alvarez, by Startel SA files an appeal against the decision issued on November 25, 2002, insofar as it declared the nonexistence of evidence pending production in the case. Likewise, and on a subsidiary basis, in the event that his appeal is not upheld, he requests that the production of better provision measures be ordered and reserves the right to produce evidence in the second instance. He states that at the time of filing the appeal in question, he requested the production, by the National Institute of Industrial Technology (INTI), of an expert opinion on the imported goods that were the subject of the customs investigation for inaccurate declaration that gave rise to these proceedings. Express the reasons that motivated the offering of this evidentiary diligence. He warns that he does not know whether the tax authorities have opposed the implementation of this measure. It refers to the ruling issued on 23.4.02, especially regarding the consequences arising from the silence of the fiscal representation regarding the merchandise whose physical location was indicated by means of the documents included on pages. 86 and 88 and those declared at the destination that were objected to by the customs service. He is aggrieved to consider that the order issued on fs. 94 is contrary to the terms of the rule of article 1152 of the Customs Code. He states that he duly requested clarification in relation to what was resolved on fs. 79, without being notified of the decision regarding his claim. He points out that, without prior clarification regarding the scope of the warning issued in the event of silence by the tax authorities, he was unable to infer that the evidence annulled on 6.9.02 was the expert evidence in question. He considers that the production of the measure he offered when filing his appeal cannot be conditioned on the will of his counterparty, which would be contrary to the constitutional guarantee of due process. He considers the closure of the evidentiary period of the case to be inappropriate. It states that the classification issue being debated in the case is essentially technical in nature and should therefore be clarified by experts in the field. It is understood that it has complied with all the requirements made by this Court for such purposes. He reiterates that Customs has not expressed any express opposition to the evidence whose production he is requesting, since that party would benefit from remaining silent on the matter. He requests that the request for clarification that he submitted on 13.5.02, reiterated on the 28th of the same month and year, be resolved. He argues that if a solution contrary to his request is adopted, it would be appropriate to order the production of measures to better provide for the situation. He cites abundant case law in support of his position. He reserves the right to produce the evidence offered in the second instance. Introduces the federal question. He requests that the challenged order be revoked by contrary authority, ordering the production of the expert evidence in question, as well as resolving his request for clarification, or, failing that, that the measures provided for in article 1155 of the Customs Code be issued.
II.- That in view of the nature of the presentation made by the appellant on pages 99/104, it should be noted that on 23.4.02, in providing the evidence offered by the plaintiffs in relation to the expert evidence requested by Startel SA, that party was asked to indicate the physical location where the equipment on which the expert evidence was to be carried out was located and the days and times when they would be available for such purposes, given that the merchandise involved in the case has already been dispatched to the market. This was done under penalty of considering that party to have withdrawn from said evidence. It was also established that, within ten (10) days of being notified of the periods and times of possible inspection of the equipment, the tax authority must issue a statement on whether such equipment is the same as the imported equipment or not, indicating that, in the event of silence on the part of that party, it will be understood that it (the tax authority) considers that they are dissimilar to those involved in the case. In relation to the rest of the evidentiary proceedings offered by both parties (documentary and informative evidence), they were considered to be fulfilled with the records already added to the case (page 79).
That in response to the request made to Startel SA at fs. 79, that party submitted the documents that were added at fs. 86 and 88. In both submissions, the appellant requested clarification of the scope that should be given to the silence of the fiscal representation, in accordance with the terms of the order issued on 23.4.02. That request was resolved on 7.6.02, where it was stated: Regarding the request for clarification requested by the plaintiff at fs. 88, there is no place due to the sufficiently clear and precise terms in which the order dated 23-4-02 was drafted (fs.79). Likewise, the fiscal representation was not informed in order for it to rule on the identity or not of the equipment whose physical location was reported by the plaintiff at fs. 88 and the imported equipment involved in the case. According to the record on fs. 90/vta., the fiscal representation was notified of the referred order on 20.6.02.-
That on 6.9.02 it was ordered that, "given the time elapsed and taking into account the lack of response from the public prosecutor's office regarding the identity of the equipment subject to the appraisal and those imported into the case, despite the notification sent and whose record is attached to fs. 90, it can be understood that there is no agreement between the parties regarding the identity of said equipment and those imported into the case, and therefore it is not appropriate to make way for the expert evidence offered on fs. 27 of these proceedings". According to the records on fs. 92/vta. and 93/vta. of the order issued on fs. 91, the parties were notified on 16.9.02 (plaintiffs) and 18.9.02 (tax office), respectively. As stated on fs. 94, there being no pending evidence to be produced in the case and no appeal having been filed against the order dated 6.9.02, on 25.11.02 it was decided to take into account what was stated by the parties in their initial and response writings, for its opportunity.
III.- That with respect to the appeal for revocation filed by Startel SA at pages 99/104, the following considerations must be made: 1) that notwithstanding the grievances raised by that party regarding the lack of notification of the order at pages 89, in that order nothing has been resolved regarding the admissibility of the expert evidence in question, the production of which was still subject to the transfer made by it to the public prosecutor's office; 2) that with the issuance of the order at pages 91, which is a consequence of the decision dated 7.6.02, the issue on which that party now requests a clarification was again addressed, since, as already indicated above, it is none other than the lack of coincidence between the imported equipment and that related to the report at pages 88 the reason why the production of the expert evidence offered in this case is inadmissible, without requiring a manifest opposition on the part of the public prosecutor's office; 3) That in view of the terms arising from the ruling on fs. 91 and the consequences arising therefrom, despite having been duly notified of the ruling in that ruling (see fs. 92 back), that party has not made any observations or filed any procedural remedy tending to have it annulled, furthermore, it was clarified in the same that it was about the expert evidence, without prejudice to the fact that the rest of the measures offered by the parties had already been fulfilled; 4) That the ruling on fs. 79 expressly clarified the effects of the silence of the customs in relation to the equipment indicated by the plaintiff, insofar as there on April 23, 2002 it was stated In the event of silence it will be understood that it considers that they are dissimilar to those involved in the case. That the subsequent request for clarification made on fs. 86 and 88 was a presentation that could in no way modify what had already been resolved on fs. 79. 4) That the appeal for revocation under analysis was only filed when it was decided that there was no evidence pending production in the case, that is, when the issue was already closed. That in effect the plaintiff did not file a revocation appeal in time against the order on fs. 79 issued on April 23, 2002, despite the fact that the consequence of the silence of the prosecution in relation to the issue raised was expressly provided for in the same. In this order of ideas, it is not appropriate to return the proceedings in this case to stages already completed, leaving on record that the clarification requested on fs. 86 and 88 was already resolved in the terms indicated in the resolution on fs. 89. That for its part, the resolution on fs. 91 that definitively rejected the expert evidence is firm and accepted.
IV.- That according to the arguments outlined above, it is not clear to what extent the decision made on 25.11.02 does not comply with the provisions of article 1152 of the Customs Code.
V.- That, it should be noted that, the issuance of the measures provided for in article 1155 of the aforementioned legal system is the power of the investigating judge of the case, who is not bound in relation to this to the requests that the parties may make, his issuance being of a discretionary nature.
VI.- That without prejudice to the above, regarding the formal inadmissibility of the appeal for revocation filed, and the plaintiff having invoked that the guarantee of defense in the trial and due process would be compromised by the denial of the expert evidence in the conditions of the case, the undersigned is obliged to clarify that nothing occurs in the case that can be invoked in this sense, but rather the absolutely opposite situation has occurred. That, in effect, in the case, it would have been simple to deny the expert evidence from the outset and outright since it deals with merchandise already introduced into the market and from which no samples were taken. However, in order to try to make possible a solution to the case with greater evidence and broader elements of judgment, the parties were given the opportunity to try to verify by mutual agreement whether the equipment to be taken into account was or was not the same as that imported, for which purpose the Customs was given notice to express itself in this regard, foreseeing the consequences of its silence. As the Customs did not reply, it was foreseen and it is concluded that the Treasury understands that such equipment as the plaintiff reported in the location indicated on pages 86 and 88 is dissimilar. Such a situation makes the evidence to be produced absolutely irrelevant since it would be produced on objects for which there is no indubitable evidence of being those involved in the imports in question in the case, nor is there an agreement between the parties in this regard. The above also means that although the Treasury does not expressly oppose the performance of the expert test, if the contested party does not express its agreement on the identity of the merchandise on which said test will fall, it is useless and irrelevant for the decision of the case. That is to say, despite the Court's attempt to facilitate a broad debate and technical analysis, such attempt was unsuccessful.
That it is likely that the plaintiff's grievances expressed in her brief on pages 99/104 only have their origin in a lack of understanding of the characteristics of the customs regulations on these aspects.
It is worth recalling some legislative precedents regarding the possibility of carrying out physical verifications or tests in relation to the goods after their release to the market, and what would be the legally admissible effects of the same.
That art. 148 of the OOAA stipulated that after an article has been cleared, appraised and delivered, Customs will not accept any claim regarding appraisal, quality, damage to the merchandise, shortage, shrinkage, theft, loss or similar. In turn, art. 434 of the same normative body provided that neither Customs nor the merchant may claim against the classification of the articles after they leave Customs. The jurisprudence in turn had interpreted, in a criterion that is still applicable today, that as an exception, errors in classification, valuation or others, could support a claim when there was no divergence regarding the identity, nature, quality, etc. of the merchandise, or these could be settled on the basis of the sole customs declaration and complementary documentation added at the time of release, or if there were official samples taken with customs intervention of the released merchandise that made possible a new control or verification. If this occurred, arts. 148 and 434 were not considered an impediment, since their purpose was to avoid cumbersome discussions and very difficult or impossible to solve, situations that would not arise in the cases indicated above (See CN Fed. Contencioso Administrativo, Sala I, in re Beaconfield SA, ruling of 3/8/1972, Derecho Aduanero, Tomo IV, B, p. 848, SA Alba, ruling of 24/6/67 and CSN, Fallos 176:353 and 183:73, among others).
That since the Customs Code came into force, I believe that criteria similar to those arising from the cited jurisprudence apply, since there are no other more reasonable guidelines for resolving a dispute that may arise under the conditions analyzed. (See in this regard CN Fed. Cont. Adm., Sala IV in re Equitel SA, c/ANA, s/appeal, judgment of 17/3/93; Sala IV in re Edy SAIF and I, c/ANA, s/ repetition, judgment of 26/9/93; Sala III, in re Laboratorios Glaxo Argentina, c/ANA, s/ repetition, judgment of 21/2/95).
VII.- That in light of the grounds set forth herein, IT IS RESOLVED:
1) To consider Dr. Eduardo A. Alvarez, as the party and to have established the indicated procedural address.
2) Not to grant the appeal for revocation filed against the decision issued on 25.11.02, leaving on record that the requested clarification was resolved in a timely manner as it arises from the grounds of this resolution.
3) To note that the order on fs. 91 that denied the expert evidence is final and accepted.
4) Not making room for the requested measure to improve provision.
5) Please note the reservation made in a subsidiary manner to request the production of evidence in the second instance and the reservation of the federal case.
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